Mary Nyawira Mwangi v William Kariuki Mwangi, Newton Gitonga Mwangi, Cyrus Waweu Mwangi, Solomon Wanjohi Mwangi, John Wachira Mwangi, Margaret Wambui Mwangi. Tabitha Wangui Mwangi & 1 other

issuance to the applicant for the two and a quarter (2 ¼) acres, she currently occupies and utilizes in land parcel No. Nyeri/Endarasha/346 (i.e. the portion marked as B2 as per the attached sketch plan) 2. That in the alternative this Honourable Court be pleased to authorize the Deputy Registrar to sign all documents to effect sub-division and/or partitioning title registration and the title issuance to the applicant for the two and a quarter (2 ¼) acre that she currently occupies and utilizes in land parcel No. Nyeri/Endarasha/346 (i.e portion marked as B2 as per the attached sketch plan) Brief facts 3. In a judgment dated 13th day of February, 2018 distribution was ordered in the following manner; 1. Summons for revocation were entered as settled. 2. The Homestead said to be about ½ an acre was to be carved out and registered in the joint names of the petitioners and all the daughters to hold in trust for the whole family. 3. The rest of the Estate of the deceased herein to be and is distributed equally between the houses. 4. That each child is entitled to an equal share of their houses share of the Estates. The same be shared equally among the children of each house. 4. Those orders on distribution are binding on the Estate as no appeal has been lodged against them. 5. The confirmed grant of letters of administration dated 6th December, 2018 were issued to two administrators REUBEN RUKWARO MWANGI and SOLOMON WANJOHI MWANGI. 6. In the course of time, the applicant MARY NYAWIRA MWANGI proceeded to allocate herself 2 ¼ acres of land on LR. NO. NYERI/ENDARASHA/346 and commenced the construction of a permanent building and effected occupation. Analysis and Determination Issues i) Whether the applicant is entitled to injunctive orders restraining the respondents/administrators from administering the Estate? 8. It is not in dispute that the applicant and the respondents are all beneficiaries of the Estate of the Deceased. She in this application seeks for injunctive reliefs. 9. In the celebrated case of Giella vs. Cassman the principles for the grant of injunctions were set out clearly thus; 1. An applicant must show a prima facie case with a light probability of success. 2. An interlocutory injunction will not normally be granted unless the applicant shows that he will suffer irreparable harm which would not adequately be compensated by an award of damages. 3. If the court is in doubt, it will decide the application on a balance of convenience. https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/12066/eng@2026-02-04 2

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a. Is there a prima facie case made out against the respondents? 10. It is the applicant who bolted first and proceeded to allocate herself 2 ¼ acres from LR. No. Nyeri/ Endarasha/346. This was done even with clear knowledge and understanding that there were in existence court sanctioned administrators of the Estate. 11. The applicants reason for so doing is given as the delay in the distribution of the Estate by the administrators and that made her mobilize funds for sub-division of the land in dispute and that the sub-division was done transparently in the presence of the beneficiaries and without any objection. 12. This fact is denied by the respondents who advert that the administrators of the Estate of the Deceased did commence the process of sub-division and transmission of the parcel of land known as Nyeri/ Endarasha/346 equally to the applicant and the respondents as shown by a certificate of official search annexture RS – 2 in the respondents replying affidavit dated 15th September, 2023. Section 45 of the Law of Succession Act provides; 1. 'Except so far as expressly authorized by this Act, or by any other written law or by a grant of representation under this Act, no person shall for any purpose take possession or dispose of or otherwise intermeddle with any free property of a deceased person. 2. Any person who contravenes the provisions of this section shall; a. be guilty of an offence and liable to a fine not exceeding ten thousand shillings or to a term of imprisonment not exceeding one year or to both such fine and imprisonment and b. be answerable to the rightful executor or administrator to the extent of the assets with which he has intermeddled after deducting any payments made in the due course of administration.’ 13. From the above point of law, the applicants action of allocating herself 2 ¼ acres of land in Nyeri/ Endarasha/346 amounted to intermeddling with the Estate of the Deased which is an offence punishable in law. 14. In the case of MRAO LTD vs. First American Bank Of Kenya Ltd & 2 Others Klr 125 Civil Appeal No. 39 of 2002 the court held; “ In civil cases, a prima facie case is a case in which on the material presented to the court, a tribunal property directing itself will conclude that there exists a right which has apparently been infringed by the opposite party to call for an explanation or rebuttal from the latter. A prima facie case is more than an arguable one. It is not sufficient to raise issues but the evidence must show an infringement of a right and the probability of success of the applicants’ case upon trial. That is clearly a standard which is higher than an arguable case’ 15. The applicant has not demonstrated what right of hers has been infringed. I find that no prima facie case has been established in this case for grant of injunction. b) Irreparable harm 16. No irreparable harm has been demonstrated in favour of the applicant. The administrators have not been shown to have refused to undertake their statutory duties of all the more than 14 respondents, it is only the applicant who appears to have proceeded to allocate to herself 2 ¼ acres without waiting for the administrators to perform their duties. It has not been established that there was demonstrable injury that cannot be adequately be compensated by an award of damages. https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/12066/eng@2026-02-04 3

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c) Balande of Convenience 17. Does the balance of convenience tilt in favour of the applicant? 18. In the case of Pius Kipchirchir Kogo Vs. Frank Kimeri Tenay (2018) EKLR ELC No. 221 of 2017 it was held; “ The meaning of balance of convenience in favour of the plaintiff is that if an injunction is not granted and the suit is ultimately decided in favour of the plaintiffs, the inconvenience caused to the plaintiff would be greater than that which would be caused to the defendants if an injunction is granted but the suit is ultimately dismissed. Although it is called balance of convenience, it is really the balance of inconvenience and it is for the plaintiffs to show that the inconvenience caused to them would be greater than that which may be caused to the defendants. Should the inconvenience be equal, it is the plaintiffs who suffer. In other words, the plaintiff have to show that the comparative mischief from the inconvenience which is likely to arise from withholding the injunction will be greater than which is likely to arise from granting it’ 19. If the orders sought are granted, more inconvenience would be occasioned to the respondents and the administrators who would have been removed from their statutory duties. 20. This application has no merit and it is dismissed. 21. This being a family matter, No order as to costs DATED, READ AND DELIVERED VIRTUALLY THIS 4TH DAY OF FEBRUARY, 2026. ............... MARTIN M. MUYA JUDGE In the Presence of Mary Mwangi – For the applicant Court assistant – Isacko https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/12066/eng@2026-02-04 4

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